ATTORNEY GENERAL v. AU KWOK CHAI

IN THE COURT OF APPEAL

Application for Review
1995, No.22

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. This is an application for review made by the Attorney General. The respondent originally faced one count which charged that on 23rd October 1995, inside Lai Chi Kok Reception Centre, he had in his possession a dangerous drug, namely 0.42 grammes of a mixture containing 0.06 grammes of heroin hydrochloride. The respondent pleaded guilty to that charge and was sentenced by Mr. Day in the North Kowloon Magistracy to one month concurrent with a sentence of 5½ years already imposed. Prior to his incarceration on 20th October he had ingested the packet of dangerous drugs the subject of the charge. On 23rd October, he then being in the Lai Chi Kok Reception Centre, he complained about a stomach ache, he not having passed the packet of dangerous drugs. At about mid-day a prison warder examined his faeces and the drugs were found. He admitted under caution that he swallowed that packet before going to jail.

2. Mr. Day, the sentencing Magistrate, sentenced him to one month's imprisonment to be served concurrently to a term of 5½ he was already serving. He noted in his Reasons for Sentence that the respondent had pleaded guilty and must be given credit for that. He went on to say:

"An aggravating feature in this case, of course, was the fact that a prisoner was taking drugs into prison. This appears to be a reasonably common scenario and is to be punished and discouraged, but having said that, in this case the quantity was very small - 0.6 gm of narcotic - and the defendant was serving a lengthy sentence."

He seemed to have been impressed by the smallness of the narcotic content as he went on to observe that it was "one rather weak dose". He rightly noted that there was no suggestion that the drugs were being taken into prison for any use other than personal use by the respondent. He went on to say:

"In considering his sentence the principal factor in my mind was totality."

With respect to the Magistrate, this may well have led him to adopt an erroneous reasoning process when assessing sentence. The first and principal factor should have been the assessment of the proper sentence for the offence being dealt with. Only when that sentence has been assessed does the consideration of totality come into play. He went on, having said that a proper sentence would, in his view, be one month to say that he

"did not feel there would be any purpose in a consecutive sentence for a man serving a term this long. A long standing drug addict facing a lengthy prison sentence is not going to be deterred by the prospect of an additional few months on his sentence."

3. The Attorney General submits that the sentence was manifestly inadequate and wrong in principle. He points out that the courts have always regarded the smuggling of dangerous drugs into prison as a serious offence. Indeed the magistrate himself appears to have taken that view. We agree. It was pointed out by Mr. Cross, who appears today for the Attorney, that this was a distinct offence and was of a kind which particularly calls for a deterrent sentence. Deterrence sentences are imposed not to deter the offender but also to deter others who might be like minded. This is of particular importance when dealing with offences of this nature as they are calculated and committed with full knowledge of the seriousness of what is being done. We are satisfied that it cannot be right that a sentence in such circumstances be made wholly concurrent.

4. As we have already indicated, the court must first determine the sentence appropriate to the offence being dealt with. We bear in mind, as did the magistrate, that this was a very small amount of narcotics and was, it is accepted, for use by the respondent himself.

5. Having done so we are satisfied that the proper sentence would have been one of 12 months.

6. We now turn to look at totality. We are satisfied that we should order that six months of that sentence be concurrent with the sentence of 5½ years imposed. This will mean that the respondent will serve an overall period of imprisonment for six years.

7. The application of the Attorney General succeeds and the sentences are varied as we have indicated.